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Dukert v. United States

United States District Court, D. New Mexico

January 5, 2017

PATRICIA DUKERT, Individually and as Personal Representative of the Estate of Clare William Dukert, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          COURT'S FINDINGS OF FACT AND CONCLUSIONS OF LAW

         THIS CASE is a wrongful death action filed by Patricia Dukert (“Plaintiff”), Individually and as Personal Representative of the Estate of Clare William Dukert, against the United States of America (“Defendant”) as a result of alleged medical malpractice by physicians at the Veterans Administration (“VA”) who treated the late Clare William Dukert (“Mr. Dukert”). Trial on the merits was conducted before the undersigned from September 7-9, 2016. After having considered all of the evidence and testimony presented at trial, after reviewing the parties' pre-trial and post-trial submissions (Docs. 66, 67, 74, 75, 81 & 82) and after considering the applicable law, the Court finds that Plaintiff failed to meet her burden of proving medical negligence at trial, and therefore finds in favor of Defendant.

         BACKGROUND

         Mr. Dukert was diagnosed with adenocarcinoma of the colon in January 2010, when a malignant mass was found in his cecum. A hemicolectomy was performed one month later.[1] Mr. Dukert underwent five more colonoscopies with polypectomy and biopsy at the 35-40 cm level (measured from the anus) of the sigmoid colon for surveillance and treatment of potentially cancerous lesions, on the following dates: April 10, 2012, June 7, 2012, September 7, 2012 and November 14, 2012. A colonoscopy performed on February 17, 2011 revealed no polyps in the sigmoid colon. See Deft. Fact 80. All of the procedures were performed at the VA Hospital in Albuquerque, New Mexico. All of the polyps subsequently found and treated were found to be benign. The sixth procedure was done on February 15, 2015, during which doctors attempted to remove a residual or recurrent benign (non-cancerous) polyp and treated the residual polyp with argon plasma coagulation (“APC”) instead of only taking a biopsy of the polyp.[2] Mr. Dukert suffered a perforation of his sigmoid colon as a result of this procedure in the area where the polypectomy was performed.

         The perforation was discovered when Mr. Dukert became very ill with fever, chills, nausea and vomiting two days after the procedure. He was seen in the emergency room at the Sierra Vista Hospital in Truth or Consequences, New Mexico, where imaging identified a perforation of the sigmoid colon at the site of the February 15, 2013 polypectomy. He was diagnosed with acute sepsis and airflifted to Del Sol Medical Center (“Del Sol”) in El Paso, Texas for emergency surgery to repair the colon perforation. Following corrective surgery for the colon perforation, Mr. Dukert suffered multiple complications including deep vein thrombosis, cardiac and renal dysfunction and prolonged intubation for respiratory distress. On March 27, 2013, Mr. Dukert was discharged from Del Sol to Casa de Oro, a skilled nursing facility in Las Cruces, N.M. for rehabilitation and monitoring, and remained there until May 31, 2013, after which Mr. Dukert received physical and occupational therapy and home health nursing for ostomy care.

         On July 9, 2013, Mr. Dukert had an acute onset of nausea and vomiting, which was diagnosed as small bowel obstruction. He was transferred to Mountain View Regional Medical Center in Las Cruces, where he underwent surgery. He was discharged on August 2, 2013, but then readmitted the following day when he had profuse bleeding in his wound area. Mr. Dukert was discharged from Mountain View Regional Medical Center on August 7, 2013 and readmitted again on August 15, 2013, where he died a week later on August 22, 2013.

         Plaintiff, Mr. Dukert's wife, filed this lawsuit as personal representative for her husband's estate, asserting claims against the Defendant under the Federal Tort Claims Act, 28 U.S.C. §§1346(b) and 2671 et seq. She contends that her husband's death was the result of medical negligence that occurred during the February 15, 2013 colonoscopy. Defendant contends that his death was caused instead by cardiorespiratory arrest secondary to severe metabolic acidosis secondary to septic shock, and related to multi-organ failure. The Court next describes the parties' positions so as to put its factual findings in proper context.

         I. Parties' Positions

         Plaintiff claims that the doctors who performed the February 15, 2013 polypectomy, Dr. Henry Lin and Dr. Brian Story, failed to follow the accepted standard of care for the treatment and surveillance of residual polyps by performing colonoscopic polypectomy after multiple prior similar procedures in the same location, instead of performing abdominal surgery. Plaintiff also contends that these doctors failed to provide competent care and safe excision during that procedure which resulted in the perforation of Mr. Dukert's colon and eventually his death. Plaintiff contends that Mr. Dukert underwent too many colon biopsies and also that the use of argon plasma coagulation (“APC”) during Mr. Dukert's February 15, 2013 procedure was inappropriate because it increased the risk of perforation.

         Defendant's position is that Dr. Lin and Dr. Story were not negligent in offering Mr. Dukert the non-surgical option as well as the surgical option. Mr. Dukert had a history of colon cancer along with recurrent polyps, and Mr. Dukert was at high risk for surgical intervention given his super obesity and serious comorbities[3] that affected every major organ of his body, and also because Mr. Dukert was opposed to surgery after having experienced adverse effects following his 2010 hemicolectomy. Defendant maintains that it was appropriate for Mr. Dukert to undergo surveillance colonoscopies and necessary to remove the polyps found in the last two procedures because they were possibly precancerous in nature. Defendant also contends that, based on the testimony at trial, APC has been found to be an effective and safe method in the management of polyp remnants in the colon, and that perforation was an unfortunate complication of Mr. Dukert's last endoscopic procedure but was not the cause of his death.

         During the two-day trial, testimony was presented by witnesses including Plaintiff's expert Dr. Theodore Coutsoftides, a colorectal surgeon, and defense expert Dr. James Edward Martinez, a gastroenterologist. The gastroenterologists who performed the last two colonoscopic procedures-(1) Dr. Henry Lin, an attending gastroenterologist and supervising endoscopist, (2) Dr. Kevin Kolendich, an attending gastroenterologist, and (3) Dr. Brian Story, who was finishing up a fellowship in colonoscopic procedures at the VA, also testified at trial. Dr. Kolendich and Dr. Story testified at trial by videoconference. Two other witnesses testified at trial, the Plaintiff and Mr. Howard Schroeder, who was Mr. Dukert's former employer and close friend.

         II. Legal Standard

         The Federal Tort Claims Act (“FTCA”) includes a limited waiver of the federal government's sovereign immunity. It allows a claimant to be awarded damages for personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of employment under circumstances where the United States, if it were a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. §§ 1346(b)(1) and 2674. Under the FTCA, the Government's liability is to be determined by applying the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). It is undisputed that the VA physicians were employees of Defendant and that they were acting within the scope of employment, for purposes of jurisdiction under the FTCA.

         In actions brought against the United States under the FTCA, the district court must look to and apply the law of the place where the negligent or wrongful acts occurred. Estate of Trentadue ex rel. Aguilar v. U.S., 397 F.3d 840 (10th Cir. 2005). In New Mexico, in order to prove medical malpractice, a plaintiff has the burden of showing that (1) the defendant owed the plaintiff a duty recognized by law; (2) the defendant breached the duty by departing from the proper standard of medical practice recognized in the community; and (3) the acts or omissions complained of proximately caused the plaintiff's injuries. Blauwkamp v. University of New Mexico Hosp., 114 N.M. 228, 231 (N.M.App., 1992) (citing SCRA 1986 13-1101 (Repl. 1991)). Doctors in New Mexico must exercise a duty of care consistent with a reasonably well-qualified healthcare provider “practicing under similar circumstances, giving due consideration to the locality involved.” NMRA UJI-Civ.13-1101. A doctor “does not guarantee a good medical result. An unintended incident of treatment [or a] poor medical result is not, in itself, evidence of any wrongdoing by the [doctor]. Instead, the patient must prove that the poor medical result [or the] unintended incident of treatment was caused by the doctor's negligence.” NMRA UJI-Civ 13-1112.

         There are several areas of contention which form the basis for Plaintiff's medical negligence claims and on which this case turns: (1) Mr. Dukert's opposition to surgery; (2) the appropriateness of surgery given his multiple medical problems, and (3) the use of APC during the February 15, 2013 procedure. The following are the Court's findings and conclusions on these issues.

         FINDINGS OF FACT[4]

         Surgery versus Endoscopy

         1. Mr. Dukert was a 62-year-old non-service connected male veteran patient at the VA Medical Center in Albuquerque. He entered military service in the United States Army on May 28, 1970, and separated from military service, with an honorable discharge, on December 23, 1971. Deft.. Fact 43.

         2. Mr. Dukert moved to New Mexico from Michigan in 2007 and was employed full-time locally as a truck repair mechanic and driver. He stood 5'10” tall. Between 2010 and 2012, his weight varied between 358 and 382 pounds. During that time period, his body mass index (“BMI”) varied from 50 to almost 55, which placed him in the category of “super obese.” Deft.. Facts 44 & 45, Testimony of Dr. Lin, TR at 304:11-23.[5]

         3. In January 2010, Mr. Dukert was diagnosed with colon cancer. In addition to the malignant tumor, the VA surgeon also identified one small polyp at the ileocecal valve; one large and three medium sized sessile polyps in the transverse colon, and one large sessile polyp in the sigmoid colon. All polyps were completely removed endoscopically or surgically in 2010, which was confirmed by the Pathology Report. Mr. Dukert never again developed a sessile polyp greater than 2 cm. Mr. Dukert had diseases in multiple organ systems. His other serious health issues included diabetes, blood pressure problems, chronic kidney disease, gout, hyperlipidemia, vascular problems, sleep apnea, super obesity with a BMI of 52-53, respiratory issues requiring home oxygen, supraventricular tachycardia, and a history of colon cancer with hemicolectomy. Deft.. Fact 8, testimony of Drs. Kolendich, Martinez & Lin, TR at 345:1-4; 600:3-10; 305:14-17.

         4. Colonoscopic perforation is a well-recognized and serious complication following lower gastrointestinal endoscopies, but it occurs very rarely. Perforation as the result of diagnostic colonoscopy has been reported in less than 0.1% of cases and perforation occurs after colonoscopic polypectomy in about 0.2% of cases. Deft. Fact 9; Pltff. Ex. 27.

         5. In its role as gatekeeper, the Court takes no issue with the qualifications of any of the experts who testified at trial. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999) (Rule 702 gatekeeping duties of the trial judge apply to all expert testimony). However, in this bench trial, the Court also assumes the role of fact finder weighing the evidence of the witness, including expert witnesses, and finds that the weight of the evidence leans in favor of Defendant's expert, Dr. Martinez. The Court also finds that the testimony of Mr. Dukert's treating physicians is consistent with Dr. Martinez' testimony.[6]

         6. Plaintiff's expert, Dr. Coutsoftides is a colorectal surgeon and not a gastroenterologist. Defendant's expert, Dr. Martinez, is a board certified gastroenterologist who practices in the Albuquerque area. Dr. Lin is a board certified gastroenterologist and at all times relevant was the Chief of Gastroenterology at the Raymond G. Murphy VA Medical Center (“VA”). Drs. Kolendich and Story are board certified gastroenterologists who formerly worked at the VA. Deft. Fact 14.

         7. Gastroenterology and colorectal surgery are different medical specialties that require separate boards, and doctors must perform more endoscopies to pass gastroenterology training than colorectal surgeons have to perform to pass colorectal surgery training. Deft. Fact 15, TR 111:5-14.

         8. Gastroenterologists typically perform many more colonoscopies than colorectal surgeons. Dr. Coutsoftides testified he has performed an average of approximately 250 colonoscopies a year over his career. In comparison, Dr. Henry Lin testified that he performs over 1, 500 colonoscopies a year and Defendant's expert, gastroenterologist Dr. James Martinez, testified he also typically performs 1, 500 colonoscopies per year. While both gastroenterologists and colorectal surgeons may perform endoscopic procedures and are held to the same standard of care when performing colonoscopies, gastroenterologists undergo more specialized and more extensive training in endoscopic procedures, including colonoscopy. Gastroenterologists also regularly employ newer, more advanced techniques in caring for the patient's colonic health than do colorectal surgeons. Deft. Facts 18, 20 & 21, Testimony of Dr. Coutsofides, TR at 37:11, Dr. Lin, TR at 285:4-5; 494:15; 495:13 and Dr. Martinez, TR at 500:10 & 502:20-23.

         9. Endoscopy is the use of narrow, flexible lighted tubes with built-in video cameras (endoscope), to visualize the inside of the intestinal tract. Colonoscopy is one type of endoscopy. Colonoscopy is a diagnostic and sometimes therapeutic procedure in which a flexible tube that is equipped with a camera at the end is introduced into the colon (large intestine) for the purpose of examining the lining of the colon. If abnormal areas are found, the endoscopist can take a sample of the tissue (biopsy) or remove the entire abnormality (resection of the lesion, a/k/a removal of the polyp). Deft. Fact 16.

         10. Measurements from the rectum regarding location of polyps in the colon are inaccurate because the colon is very stretchy and elastic. Deft. Fact 27.

         11. A polypectomy is the removal of a polyp. A pedunculated polyp is a polyp with a stalk that looks similar to a mushroom; these polyps are readily amputated with a wire snare placed and tightened around the stalk of the polyp. A sessile polyp is a flat polyp that may be resistant to such amputation with a wire snare. If attempts at saline injection to raise up the sessile polyp to aid in removal are unsuccessful, then piecemeal polypectomy is the standard of care for removal of a sessile polyp. During piecemeal polypectomy, a biopsy forceps, which is a tiny tool, is repeatedly used to “bite off” pieces of visible abnormal tissue until the entirety of the visualized polyp is removed. Deft. Fact 28.

         12. The intestine has four layers. The body replaces the mucosa (lining) in the colon, which is nearly transparent, every three days. Below the mucosa is the submucosa, which has feeding blood vessels that run halfway down. After a polypectomy, a healing response is initiated in the colon, resulting in a scar. The visible scar is a sign of completed healing. However, in removing polyps, the endoscopist is working above the scar, in the mucosa, which is why none of Mr. Dukert's pathology samples contained scar tissue. When the endoscopist no longer sees the blood vessels but sees only a scar, that scar is between the blood vessels and the mucosa. Deft. Fact 33, Testimony of Dr. Lin, TR at 276:11-18.

         13. The instruments used by the endoscopist are very tiny. The biopsy forceps cannot remove tissue deeper than the mucosa. Deft. Fact 34, Testimony of Dr. Lin, TR at 292:1-10.

         14. The most common types of adenomas are called tubular adenomas. Tubular adenomas look different under the microscope from the normal lining of the colon, with glands that look like simple tubules. Testimony of Drs. Lin and Kolendich.70 15. “Inking” or “tattooing” is a method of marking a general site or area of the colon where a polyp has been removed. Tattooing does not pinpoint a specific site of a previous polyp. In contrast as to what is generally understood from tattooing on the surface of the skin, there is a fairly large area that is discolored. Deft. Fact 26, Testimony of Drs. Lin & Kolendich, TR at 317:10-319:12;355-357.

         16. It is recommended that patients with sessile adenomas that are removed piecemeal should be considered for follow up at intervals of 2 to 6 months to verify complete removal, and afterwards, surveillance should be individualized based on the endoscopist's judgment. Deft. Fact 29, Pltff's Ex. 29 (2006 colonoscopy surveillance guidelines). The medical providers at the VA followed this recommendation.

         17. The most common types of adenomas are called tubular adenomas. Tubular adenomas look different under the microscope from the normal lining of the colon, with glands that look like simple tubules. Deft. Fact 37, Testimony of Drs. Lin and Kolendich, TR at 298-299.

         18. A second type of adenoma is called villous adenoma. Just as tubular adenoma looks different from normal tissue, villous adenoma looks totally different from tubular adenoma. These two tissue types are distinct not only because of their different appearance but also because they have different biology. The villous type has elongated glands that have a fern-like growth pattern and a higher risk of cancer. Deft. Fact 38, Testimony of Dr. Lin, TR at 329:18-23 19. A third type of adenomatous polyp has a mixture of tubular and villous patterns and is called tubulovillous adenoma. Like villous adenoma, this is also considered a high risk histology (microscopic structure at risk of becoming malignant in the future). However, whether it is a tubular, villous or tubulovillous adenoma, it is still a benign tumor, meaning a neoplasm with malignant potential but not actual malignancy. The biology behind the adenomas makes them different, and polyps do not “morph” into other adenomas. Deft. Facts 39, 40, Testimony of Drs. Lin & Martinez, TR at 299:3-8; Testimony of Dr. Kolendich, TR at 370:1-11.

         20. Residual polyp is defined as a remnant of a polyp (tumor or cancer) after primary, curative therapy. A recurrent polyp (also known as recurrence of polyps) is defined as the development of one or more new polyps after a previous polyp has been removed. Deft. Fact 30.

         21. The accepted medical literature provides that, “When there is an indication to examine the entire large bowel, colonoscopy is the diagnostic procedure of choice. It is the most accurate method of detecting polyps of all sizes and it allows immediate biopsy or polypectomy. Most polyps found during colonoscopy can be completely and safely resected, usually using electrocautery techniques. Scientific studies now conclusively show that resecting adenomatous polyps prevents colorectal cancer.” Deft. Fact 17, Bond article, 3054-3055.

         22. Prior to undergoing a colonoscopy, patients must undergo a specified colonoscopy preparation to clean out the colon. This preparation usually involves a liquid diet, medication, and drinking copious amounts of fluid, including Golytely. Some patients, especially diabetic patients, frequently have difficulty adequately cleaning out their colons, despite carefully following their doctor's instructions for colonoscopy preparation. Plaintiff testified that Mr. Dukert “absolutely” followed his doctors' recommendations for extended bowel preparation. Testimony of Patricia Dukert. Despite extended preparation, almost triple what would be required of most patients, Mr. Dukert had difficulty cleaning out his colon prior to his colonoscopies. Deft. Facts 22-24; Testimony of Drs. Lin & Kolendich, TR at 315:25-316:4; 179:5-10; Testimony of Mrs. Dukert, TR at 179:5-17.

         23. A patient who repeatedly presents for colonoscopy with a poorly prepped colon would also present similarly for elective colon surgery; so whether the patient had emergent colon surgery after a perforation or whether the patient had elective colon surgery, there would be spillage (of the fecal contents of the colon into the abdominal cavity). Dr. Lin testified that if Mr. Dukert had undergone a colon surgery instead of a colonoscopy on February 15, 2013, there is no medical reason to believe that he could have avoided postsurgical complications. The myriad of surgical complications suffered by Mr. Dukert after the perforation could still have occurred if he had undergone surgery without the perforation. Deft. Fact 25, Testimony of Dr. Lin, TR at 264:20-23; 264:6-16; 265:23-25.

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